Statutory Mandate of the Corporate Affairs Commission And Implementation Of CAMA 2020. By John Demide Esq &; Gerald Ajoku Esq.

The Companies and Allied Matters Act, 2020 [The Act], repeals and replaces the  Companies and Allied Matters Act of 1990. The new Act now seen as Nigeria’s most significant legislation passed three decades after CAMA 1990, is targeted at injecting the much needed innovation required to jumpstart the economy. The Act has been copiously analysed by various articles and has been seen to have introduced new provisions that promote the ease of doing business whilst reducing regulatory hurdles and also bringing the provisions in tandem with the technological realities of the 21^st century. This is expected to ultimately promote investments, create more jobs, and especially promote a friendly business climate in Nigeria. This article is aimed at reviewing the Statutory mandate of the Corporate Affairs Commission and the possible hurdles and/or novel steps that would impede or advance the full realization/implementation of the Act.

Stages of Enacting A Law (The LAW-MAKING Process)

However, for us to appreciate a law, we need to know the stages a law goes through before it comes into being and it is available for all to see, criticize and utilize. As is customary for every law in existence in Nigeria today, they all have a process they go through before coming into force. There are the legislative steps known to all that are taken by the legislative arms of government and there are the executive steps that are provided for under Part II (Miscellaneous Provisions) of the 1999 constitution, more specifically under Section 305 that can be exercised by the President exclusively in certain instances. However, for our swift discourse, we will be focused on the Legislative steps. Every law follows a process before becoming effective/live for implementation. The law goes through the crucible of notification, every bill must receive three readings before it can be adopted and no more than one reading can occur on the same day, there are however exceptions which are not for our discourse today. As culled from the Library of Congress, the stages are set out below:

1. First Reading: At the first reading, the person sponsoring the bill presents it and the clerk reads its short title aloud.
2. Second Reading: The second reading is the stage at which debate of a bill occurs. Here, the sponsor of the bill (the Majority Leader in the case of executive bills) explains its basic aspects and benefits. Members wishing to participate in the debate are accorded five to seven minutes to speak, at which time they argue for the bill’s rejection or amendment; if, at the end of the debate, the bill receives the support of the majority of the house in which it is being considered, it passes to the next stage. 
3. Committee Stage: The bill is next assigned to a select or standing committee for a more thorough examination. The relevant committee examines each provision and holds public hearings; however, while anyone may make suggestions, only members of the committee may propose an amendment. The committee then reports its findings on the bill with all the amendments, if any, back to the House of Representatives or the Senate for deliberation. Bills deemed important are referred to and examined by the entire house constituted as a committee of the whole in place of the select or standing committee. 
4. Third Reading: Typically, there is not much debate and no amendments are made at the third-reading stage. However, a member who wishes to seek to amend the bill or introduce a provision may make a motion that the bill be recommitted before the motion for the third reading is acted upon; if the motion is agreed to, the proposed amendment is considered by the committee of the whole. This is followed by the third reading, where the bill is voted on and passed if it garners majority support. 
5. Joint Conference Committee: If the House of Representatives and the Senate adopt different versions of a bill, a Joint Conference Committee is constituted to reconcile the differences.  Members of the Committee deliberate only on the parts of the bill where there is disagreement; no new item may be introduced at this stage. If either chamber of the National Assembly refuses to accept the decision of the Committee, the bill dies unless it is a money bill, in which case it is referred to a joint sitting of the National Assembly for a vote and enacted if it garners majority support. 
6. Assent: The Nigerian President plays a crucial role in the lawmaking process through the constitutionally guaranteed veto power, which may be exercised over any legislation adopted by the National Assembly.  The Constitution states in Sections 58(3)&(4), [w]here a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented to the President for assent when it has been passed by that other House and agreement has been reached between the two Houses on any amendment made on it. 

Now, after reviewing the processes listed/highlighted above, there is no doubt that the CAMA 2020 as a law is now in existence. However, the next question that lays before us is “is the CAMA 2020 in force?”.

Is CAMA 2020 in force?

The Act as it is today, has scaled all the steps outlined above. Now the question that burdens the mind and the entire commercial populace as it stands right now, is when the amended act (CAMA 2020) comes into force or becomes effective and how can its implementors (CAC)  take up the mantle and drive the innovations therein. In this light, we have had a plethora of reportage having the RG positing that the new Acts enforcement is not yet active as it has not been officially transmitted to be Gazetted for the commencement date to be clear for all to commence implementation.

In Ogboru & Anor vs Uduaghan & Ors (2011,SC) the question as to the commencement of the then amended 1999 constitution came under the same view of discussion and then it was held that to resolve the issue one had to look at Section 2 of the Interpretation Act, Cap 123 Laws of the Federation of Nigeria, 2004 to determine the grounds for this to be reviewed. The act states that:

1. An Act is passed when the President assents to the Bill for the Act whether or not the Act then comes into force. 
2. Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, come into force-
   1. In the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed,
   2. Where an enactment is expressed to come into force on a particular day it shall be construed as coming into force immediately on the expiration of the previous day.”

Now bearing in mind this provision of the law as outlined above, one can safely deduce from the letter of the law that the CAMA 2020 which is the Act under discourse is in essence in force and for lack of a better definition of the law commenced from the date when the President was widely televised and reported as having assented on the 7^th day of August 2020. However, the assenting and documentation of the law has been an issue of controversy as there has been a trail of discourse to which this article will most likely be joined into as trying to determine the commencement date of the new Act.

The Gazetting of the law for purpose of clarity is meant to be a documentary proof of the date of commencement as reflected on the face of the document that was signed by the President and the Federal Republic of Nigeria Official Gazette. 

According to Wikipedia, A government gazette (also known as official gazette, official journal, official newspaper, official monitor or official bulletin) is a periodical publication that has been authorised to publish public or legal notices. The Black’s Law Dictionary equally states that the gazzete, is the evidence of acts of state, and of everything done by the king in his political capacity. It is usually established by statute or official action and publication of notices within it, whether by the government or a private party, is usually considered sufficient to comply with legal requirements for public notice. This helps to douse the source of any law under reference by anyone. 

Thus, for the purpose of clarity and unambiguity, it is the opinion of this writer that it is always safer to refer to a gazetted law. However, the non gazetting of the law does not dispense with the validity of the fact of its enactment and existence.

Thus the Corporate Affairs Commission which is the parastatal created by the Act to effectively implement the letter of the law in regards the implementation of the CAMA are duty bound to be ahead of the curb in preparing for the implementation of the novel innovations contained in the new instrument enacted.

Impediments Slowing down the Implementation Of Cama 2020 

In the opinion of this writer, the Corporate Affairs commission as custodian of the Act are abreast of the issues that have bedeviled the system and its implementation since its inception and operation. However, there are a few issues that we foresee as being probable issues that could impede the implementation of the Act. They are:

• Gazetting: In the myriad of copies that have been circulated in the general public, the CAMA 2020 has not been officially gazetted, for it to fully and effectively come into force. In an interview granted by the Registrar General of the CAC, Garba Abubakar to a Newspaper tabloid, he was reported as saying that the commission in operating the global best practices and standard on Companies and Allied Matters and is still waiting for the Federal Government to gazette the new CAMA for its implementation to commence. 
• No- Commencement Date: Section 2 of the Interpretation Act provides that if an enactment does not state or provide for a commencement date, the enactment comes into force on the date of its certification and sealing, or in the case of a regulation, on the day on which it is made. It is important to note that the new Act does not contain a commencement date as has been seen from the multiplicity of copies in circulation. The commencement date is abundantly important as it states the period from when a law comes into force and its application commences. This is because a law ordinarily needs to have a timeline that gives its effect a degree of reasonability and effectiveness.
• Slow Implementation: it has been said that the Corporate Affairs Commission(CAC), the Agency mandated to implement the CAMA is ready to implement the law. However, it can be seen that the CAC has been grovelling with its internal processes to catch up with the novel advancements that they are meant to have commenced implementing. On the registration portal of the CAC as at the time of publication of this article, the CAC still has not streamlined most of their registration processes to align with the provisions contained under the CAMA 2020.
• Non-Appreciation of Business Etiquette by the CAC: Considering the fact that the CAC is responsible for the efficient and effective implementation of the Act, and its attendant role stated in the law. There is a need to orient the staff of the commission on the need to evolve a better means of interaction/engagement with the end-user(s) with whom they transact with. This is owing to the fact that the CAC being the repository of all registered businesses in the country, is put in a sensitive position that requires a degree of personal interactivity with the agents of the Commission and likewise business owners that come to seek the services of the commission.

SUGGESTED MEASURES TO BE ADOPTED

GAZETTING

Gazetting is the process of notifying the general public about the existence of the Law. As was noted earlier in the article, when a law is going through its formative process, it is gazetted to notify the public as to the fact that it is going to be discussed/considered for a debate in the National Assembly. Likewise, once it has gone through the complete process, it is meant to be Gazetted again, now not as a work in progress, but as a final product/law that has the full flavour of existence and can be referred to .

The CAMA 2020 being a Law that is meant to guide the business operations of companies in Nigeria, needs to be speedily Gazetted to enable its immediate and swift implementation. This law guides the business operations of multi levels of the economy and every day that the law stays in limbo, it has a ripple effect on the internal governing structures of the Private sector which equally drives the economy of the country.

IMPROVED APPRECIATION OF THE ROLE OF THE COMMISSION

A careful perusal of the CAMA 2020 reveals that it is in every sense a revolutionary piece of legislation containing many corporate legal innovations geared towards not only enhancing the ease of doing business in Nigeria but also profoundly influencing the direction of corporate activities and their regulations in order to promote millennial entrepreneurship and economic prosperity in Nigeria.

The Commission is advised to stop creating unnecessary bureaucracies which encourage redundancy and in effect delay the completion of pending jobs put before the commission. For example, to dispatch certificates and documents to customers upon completion of registration processes is not a procedure meant to become an issue of contention. For Example, recently the CAC introduced the policy of dispatching certificates/inquiries made via courier services at a premium. If the CAC wishes to become efficient in the managing of this critical aspect of the registration process, it must set out a clear guideline that sets out the terms of reference for the courier companies to be utilized and use courier companies to do so effectively with a stated timeline to cover dispatch to whatever location the document(s) are to be delivered to.

CREATION OF TIMELINES FOR EXECUTION OF ACTIVITIES: As most business ventures are engaged in time bound events, the Commission has to rise up to the challenged and equally set actionable deadlines for treating applications put before it. Timelines for action and resolution of activities, queries etc should be specifically spelt out and adhered  to. Once the Commission realizes that it’s  a vital tool in the growth and effective economic health of the Nation, it will realize that all departments of the commission cannot afford to have any redundancy and must be functional at all times. 

CREATE AN EFFICIENT AND EFFECTIVE FEEDBACK MECHANISM: the CAMA 2020 has set before us a new paradigm of doing business in the country. As such the CAC is duty bound to set up an efficient and effective feedback mechanism that must as of necessity be customer/consumer friendly. This is because every person/company/agent that comes to the commission to transact, is a customer and must be treated with the utmost level of respect and professionalism. The commission through the chosen medium of feedback, should be able to efficiently and effectively communicate the state of affairs of the commission to the consuming public to avoid unnecessary misinformation. 

Conclusion:

Enacting a revolutionary piece of legislation such as the CAMA 2020 is one thing, getting the Corporate Affairs Commission (CAC) to discharge its functions diligently is a different thing entirely. After all, the CAMA 2020 is not an autonomous self-operating robot capable of giving life to itself, It requires a diligent CAC to make it work. In fact the efficient implementation of the CAMA 2020 is dependent to a large extent on the functionality of CAC and vice versa the continued existence and operation of the CAC is dependent on the CAC’s ability to step up to the plate and own up to its attendant responsibility of animating and enforcing the provisions of the CAMA.

Overall, the repeal of the CAMA 1990 with this 2020 Act is a welcome development for businesses in Nigeria. This will boost commercial transactions and the laws and accompanying practices.  It is hoped that in implementing the law, the Corporate Affairs Commission and other relevant government agencies will keep to the spirit of the amendment, which is to enhance the overall ease of doing business in Nigeria. Companies, individuals and anyone doing business or intending to do business in Nigeria are advised to seek professional advice on the impact of the amendment to their business operations.

REFERENCES:

1. The Triumph Newspaper of Wednesday, 23^rd 2020.
2. Thisday Newspaper: Interview with RG Corporate Affairs Commission, September 8^th, 2020.
3. https://lawpadi.com/11-steps-to-how-a-law-is-made-in-nigeria/ 
4. Reforming the Corporate Affairs Commission, August 12, 2020.
5. Enhancing the ease of doing business in Nigeria by Micheal Dugeri, August 20, 2020.
6. Covid 19 Pandemic and new reform initiative by CAC, August 22, 2020.
7. Companies And Allied Matters Act.
8. The Black’s Law Dictionary, 2nd ed.
9. The Legislative Process, National Assembly, http://www.nassnig.org/page/the-legislative-process (last visited Jan. 6, 2017), archived at https://perma.cc/DEF7-4W.
10. Senate Standing Orders, supra note 59, § 78; Standing Orders of the House of Representatives, supra note 55, Order XII; Ogbonnia, supra note 16, at 258.
11. [116] The Legislative Process, National Assembly, supra note 106.
12. [117] Id.; Ese Malemi, The Nigerian Constitutional Law: With Fundamental Rights (Enforcement Procedure) – Rules 2009 at 208 (3d ed. 2008).
13. [118] The Legislative Process, National Assembly, supra note 106.
14. [119] Malemi, supra note 117, at 208.
15. [120] The Legislative Process, National Assembly, supra note 106.
16. [121] Malemi, supra note 117, at 209.
17. [122] Id. at 208.
18. [123] The Legislative Process, National Assembly, supra note 106; Malemi, supra note 117, at 209.
19. [124] The Legislative Process, National Assembly, supra note 106; Malemi, supra note 117, at 209.
20. [125] Id.
21. [126] The Legislative Process, National Assembly, supra note 106.
22. [127] Id.; Constitution of Nigeria § 59.
23. [128] Constitution of Nigeria § 58.
24. https://en.wikipedia.org/wiki/Government_gazette